Tripura HC: Whether the court can treat deceased as moneyed person for the purpose of computation of compensation if he had a Car?

 Coming to the question of quantum. The first issue to be decided is what was the income of the injured. The claimant-injured claimed that he was running a computer training institute and was earning more than Rs. 25,000/- per month. However, he led no evidence worth the name to prove the fact that he was running a computer training institute. No record has been produced except one certificate issued by the Institute of Advance Computing, Central Road, Bishalgarh. This certificate also only gives permission to the petitioner to run a computer centre but in no manner shows that he was running a computer centre. The learned Tribunal assessed the income of the injured at Rs. 3,000/- per month. The injured is definitely not a labourer. Even in the year 2010, a labourer would also earn more than Rs. 100/- per day. The assessment of income is very much on the lower side. The injured is an owner of a car and the Inspector who appeared on behalf of the State has in his statement also stated that the injured is a moneyed man and has used his money to build a false case. The fact that the claimant had a car itself shows that he has a reasonable amount of income. He has, however, not shown that he was paying any income tax. The accident took place in the year 2010 and at that time the exemption limit was Rs. 1,50,000/-. Taking into consideration certain other exemptions, I assess the income at Rs. 15,000/- per month. {Para 8}

 IN THE HIGH COURT OF TRIPURA AT AGARTALA

MAC App. 100 of 2012 and CO(FA) 07 of 2013

Decided On: 05.01.2016

The State of Tripura and Ors. Vs. Sanjib Sarkar and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, C.J.

Citation: (2016) 2 TAC 702,MANU/TR/0002/2016.

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Tripura HC: Multiplier of 5 should be applied while granting compensation under Motor accident if deceased was aged more than 70 years

 According to the Pension Payment Order book, on the date of the accident, the age of the deceased was 78 years. So, in terms of the multiplier as made applicable under the table decided at Column No. (4) in Sarla Verma (supra), multiplier 5 is to be applied for the age group of 65 years and above, the same is taken on record. Accordingly, the first point of argument of Mr. Deb, learned counsel appearing for the appellant-Insurance Company is answered in favour of the claimants. Here the argument of Mr. Deb, learned counsel that in Sarla Verma (supra) multiplier 5(five) is allowed up to the age schedule 66 years to 70 years does not stand because the same was said the by Hon'ble Apex Court in the said Judgment in the context of other cases. Therefore, the age of the deceased 78 years is considered as per table 65 years and above and considered the case of the claimants accordingly as there is no restriction up to 70 years. The lifespan as per table can be beyond 70 years. Thus, the argument of the Insurance-counsel is rejected.  {Para 19}

 In the High Court of Tripura at Agartala

(Before T. Amarnath Goud, J.)

MAC App No. 07 of 2023

National Insurance Company Ltd. Vs  Sadhana Debnath and Others 

Decided on October 5, 2023, 

Citation: 2023 SCC OnLine Tri 846.

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Tripura HC: Formal defect’ for the purpose of withdrawal of suit must be given a liberal interpretation meaning various kinds of defects not affecting merits of plea

What is a “formal defect” has been explained by the Apex Court in a recent decision rendered in case of V. Rajendran and another versus Annasamy Pandian (Dead) through Legal representatives Karphyayani Natchiar reported in (2017) 5 SCC 63 wherein it was held as under:

“10. In K.S. Bhoopathy and Ors. vs. Kokila and Ors. (2000) 5 SCC 458, it has been held that it is the duty of the Court to be satisfied about the existence of “formal defect” or “sufficient grounds” before granting permission to withdraw the suit with liberty to file a fresh suit under the same cause of action. Though, liberty may lie with the plaintiff in a suit to withdraw the suit at any time after the institution of suit on establishing the “formal defect” or “sufficient grounds”, such right cannot be considered to be so absolute as to permit or encourage abuse of process of Court. The fact that the plaintiff is entitled to abandon or withdraw the suit or part of the claim by itself, is no licence to the plaintiff to claim or to do so to the detriment of legitimate right of the defendant. When an application is filed under Order XXIII Rule 1(3) CPC, the Court must be satisfied about the

“formal defect” or “sufficient grounds”. “Formal defect” is a defect of form prescribed by the Rules of procedure such as, want of notice under Section 80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties.

 “Formal defect” has been described as a defect of form prescribed by the Rules of procedure such as, want of notice under Section80 CPC, improper valuation of the suit, insufficient court fee, confusion regarding identification of the suit property, misjoinder of parties, failure to disclose a cause of action etc. As held hereinabove by the Apex Court “Formal defect” must be given a liberal meaning which connotes various kinds of defects not affecting the merits of the plea raised by either of the parties. Evidently, lack of pecuniary jurisdiction in the instant case did not affect the merits of the case of either of the parties rather it would fall within the meaning of formal defect as provided under Order XXIII Rule 3(a). Since the trial had not even commenced and the lack of pecuniary jurisdiction was pointed out to the learned trial Court at the very outset, the plaintiff had an option either to seek return of the plaint to be presented before the concerned court or to seek withdrawal of the suit with a liberty to file a fresh suit after curing the defect.

{Para 8}

HIGH COURT OF TRIPURA

_A_G_A_R_T_A_L_A_

CRP No.59 of 2023

Sri Rathindra Chandra Das Vs Sri Barun Chandra Das and another

Coram: HON’BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH

Dated: 13.02.2024

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Whether certified copy of sale deed is deemed to be proved if it is exhibited without objection from other side?

 But, here, the question is, whether the plaintiffs have been able to prove the contents and execution of the sale deed they adduced as evidence. The scribe of the sale deed was produced by the plaintiffs who deposed as PW.3. During his cross-examination, PW.3 admitted that he did not know Asrab Ali, the vendor of the sale deed in question or his hand writing or signature and he also could not say whether original Asrab Ali executed the sale deed before the Sub-Registrar. Furthermore, the case of the defendant/respondents is total denial of the facts and circumstances of execution of the sale deed.  {Para 13}

14. Clause (b) of Section 65 of the Evidence Act contemplates that secondary evidence may be given of the existence, condition or contents of a document when the existence, conditions or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative.

15. In the instant case, the existence, conditions or contents of the original sale deed have not been admitted in writing by the defendants against whom the plaintiffs wanted to prove it. However, considering the law that certified copy of a registered deed may be the proof of the contents of the original deed, the contents of the sale deed (Ext.3 series) may be admissible in evidence since objection to the contents was not raised by the defendants. Applying the principle as laid down in Dayamathi Bai (supra), in the opinion of this Court, there cannot be any disagreement in the said proposition of law that admissibility of a document in the form of secondary evidence cannot be questioned if objection is not raised by the opposite party when the document is introduced and taken into evidence and marked as exhibit. 16. Here, however, the principal question hinges upon whether the execution of the sale deed (Ext.3 series) is proved or not, keeping in view the findings of the Courts below as regards admissibility of sale deed in evidence.

17. According to this Court, a certified copy is secondary evidence under Section 63 of the Evidence Act which acknowledges/recognizes the existence, conditions and contents of the deed, but not of its execution. This Court does not find any mention that secondary evidence itself is the proof of the execution of the deed. Added to it, execution of document means the last act or series of acts which complete the document. It does not mean merely signing it. In other words, execution means all acts necessary to make the parties to the contract bound thereby. In furtherance thereof, it should be accompanied by the intention to give effect to the document in question. 

18. In the context of the present case, it is re-iterated at the cost of repetition that execution of the sale deed by Asrab Ali i.e. vendor of the sale deed (Ext.3 series) has not been proved since PW.3 admitted that he did not know Asrab Ali or his handwriting or signature and he also could not say whether original Asrab Ali executed the sale deed before the Sub-Registrar.

19. In this situation, according to this Court, in the present case, it is apparent that execution of the sale deed (Ext.3 series) has not been proved being not accompanied by the intention of the executant (Asrab Ali, the vendor) to give effect to the said sale deed, Ext.3 series in question, when it is the specific pleaded case of the defendants/respondents that Late Asrab Ali had never intended to sell the suit land and the alleged sale deed (Ext.3 series) was simultaneously accompanied by a deed of re-conveyance, which, in reality was a deed of mortgage. Therefore, in the context of the case, the attending circumstances of the execution of sale deed (Ext.3 series) ought to have been necessarily proved by the plaintiffs, which they failed to discharge by leading other evidence recognized by law of evidence.

HIGH COURT OF TRIPURA AGARTALA

 RSA No.52 of 2022

Smti. Rubia Bibi  W/o Alfat Ali, Vs Md. Mati Miah

 Coram: HON’BLE MR. JUSTICE ARINDAM LODH 

Dated : 08.02.2023 

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Whether a suit for declaration of legal heir is triable by Civil Court or by a Family Court?

          In the case at hand, the plaintiff-petitioners instituted the suit under Section 34 of the Specific Relief Act seeking declaration that plaintiff No. 1 is the only legal heir of one deceased Matangini Suklabaidya and seeking further declaration that the defendant No. 1 is not the heir of said Matangini Suklabaidya and such declaration, in my considered opinion, cannot be given by the Family Court and it is the absolute jurisdiction of the Civil Court to give such declaration as to the status of a person whether the plaintiff No. 1 is a legal heir or the defendant No. 1 is a legal heir or not.

9. The Civil Court jurisdiction cannot be put into a water type compartment. The jurisdiction of the Civil Court is wide. Only where there is a special law enacted to deal with some particular aspect the jurisdiction of the Civil Court will be ousted. The Family Court is a Court established under the Family Courts Act to deal with particular aspect in respect of the dispute concerning family, but here in this case, the status of two persons as to whether they are legal heirs or not is in the dispute which shall be decided by the Civil Court and not by the Family Court. The learned Civil Judge, Jr. Division committed gross error of law in directing transfer of the case from his Court to the Family Court and hence the impugned order is liable to be interfered and set aside.

               TRIPURA HIGH COURT

(Before S.C. Das, J.)

Smt. Pramila Suklabaidya,  Vs Smt. Jyostna Suklabaidya, 

CRP No. 02 of 2008

Decided on May 28, 2015

Citation: 2015 SCC OnLine Tri 529 : (2015) 153 AIC 896

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Whether denial of maintenance amount to wife amounts to economic abuse as per the domestic violence Act?

 In this case, the wife who filed the

application under Section 12 of the DV Act in the trial

court is obviously an aggrieved person within the

meaning of the Act because she made allegations of

domestic violence against her husband and the fact that

she was in a domestic relationship with the husband as

his wife has been admitted by her respondent husband.

Now the question is whether the wife proved

commission of domestic violence against her husband

at the trial court and become entitled to a relief under

Section 12 of the DV Act.

[31] Apparently, domestic violence has been

defined under Section 3 of the Act in a very wider term

and with regard to proof of domestic violence,

explanation II to said Section 3 provides that for

determining whether any act, an omission, commission

or conduct of the respondent constitutes “domestic

violence” under the said Section, the overall facts and

circumstances of the case, shall be taken into

consideration.

[33] In gist, the Additional Sessions Judge upheld

the direction of the trial court prohibiting the husband

from committing any kind of domestic violence or

aiding or abetting in the commission of any act of

domestic violence upon the wife and by means of

monetary relief as under Section 20 of the Act, the

order for payment of ₹15,000/- to the wife was also

upheld.

[34] In the instant case, during his crossexamination

before the trial court the husband had

categorically admitted that his monthly salary was

₹49,000/- excluding all deductions. He also admitted

that he gave nothing towards maintenance of his wife

from 13.12.2015. His statement is reproduced as

under:

“At present my gross salary is 49,000/-

excluding deductions. It is true that I have not given

any maintenance to my wife since 13.12.2015.”

[36] Under Section 3 of the DV Act which defines

domestic violence, ‘economic abuse’ is a form of

domestic violence. Clause (iv) of explanation I of

Section 3 relates to ‘economic abuse’ which includes

deprivation of all or any economic financial resources to

which the aggrieved person is entitled under any law or

custom whether payable under an order of a court or

otherwise. 

[37] In the present case, obviously the wife is

legally entitled to maintenance allowance from her

husband who is a salaried government employee. She

has made out a good case justifying her separate living.

Admittedly, she is a housewife and she has no source of

earning whereas the husband draws a monthly salary of

₹49,000/- excluding all deductions. In these

circumstances, denial of maintenance allowance to the

wife obviously causes ‘economic abuse’ to her within

the meaning of domestic violence as under Section 3 of

the DV Act. There is, therefore, no infirmity in the

impugned judgment.

HIGH COURT OF TRIPURA

AGARTALA

Crl.Rev.P.No.36 of 2020

Ramendra Kishore Bhattacharjee Vs Smt.Madhurima Bhattacharjee

Dated: 10.02.2021

B E F O R E

HON’BLE MR.JSUTICE S.G.CHATTOPADHYAY

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Whether denial of maintenance to wife amounts to economic abuse to her within the meaning of the Domestic violence Act?

 In the present case, obviously the wife is

legally entitled to maintenance allowance from her

husband who is a salaried government employee. She

has made out a good case justifying her separate living.

Admittedly, she is a housewife and she has no source of

earning whereas the husband draws a monthly salary of

₹49,000/- excluding all deductions. In these

circumstances, denial of maintenance allowance to the

wife obviously causes ‘economic abuse’ to her within

the meaning of domestic violence as under Section 3 of

the DV Act. There is, therefore, no infirmity in the

impugned judgment.

HIGH COURT OF TRIPURA

AGARTALA

Crl.Rev.P.No.36 of 2020

Ramendra Kishore Bhattacharjee Vs Smt.Madhurima Bhattacharjee

B E F O R E

HON’BLE MR.JSUTICE S.G.CHATTOPADHYAY

Dated: 10.02.2021

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Whether the government can refuse to grant medical reimbursement to govt servant if he has failed to obtain referral order before taking medical treatment?

The reply of the Government is short and opposes the prayer

of the petitioner on two grounds. Firstly that there was no referral order allowing the petitioner to take the treatment from outside the State and secondly, there were no extra ordinary urgent grounds for the petitioner to have travelled outside the State for his treatment without presenting himself before the Medical Board.

[5] Both the objections of the Government need to be overruled.

Firstly, as noted the petitioner was struggling with aggressive infection on

his nose which did not get cured despite his treatment at the hands of

ENT specialist and skin specialist. The petitioner therefore desired to

have further investigations and opinion from the experts. He, therefore,

approached the authorities for permission to travel outside State. His

request dated 29th November, 2019 met with no immediate response. He could not wait any longer. He started his travel on 5th December, 2019. It was only thereafter that the Medical Board conveyed to him that unless and until he is present a referral order cannot be issued in his favour. On 7th December, 2019 the hospital at Vellore detected that the petitioner was suffering from cancer. Under such circumstances it was not expected for the petitioner to have waited for the Medical Board to call him for

personal appearance for grant of referral order which would delay his

treatment. As things turned out, having gone to Vellore for investigations,

the petitioner ended up the undergoing entire treatment even without

returning home for which purpose his leave was sanctioned by the

employer.

[6] Under such circumstances to expect the petitioner to wait for

the referral order is unreasonable. It is not even the case of the

respondents that the specialized treatment needed for such cancer is

readily available within the State. In other words going by the stand of the

respondents if the petitioner had presented himself before the Medical

Board and waited for long enough for the Medical Board to respond to

his request for grant of referral order, the same would have been granted.

Only on that ground to deny the benefit of reimbursement of medical

expenditure would be interpreting the policy of the Government too

rigidly. Further, the ground that there was no urgency in the petitioner

departing for treatment, also must be rejected. After having waited for

long enough for the treatment prescribed by the local doctors to have

effect and the treatment having failed to have desired effect, the petitioner

had to have a proper diagnosis and line of treatment. It is not as if the

petitioner departed immediately without informing the employer or even

the Medical Board. The petitioner did approach the Medical Board but

could not give too long a time for Medical Board to respond. The

petitioner had to take a calculated risk of departing without prior referral

order.

HIGH COURT OF TRIPURA

AGARTALA

W.P(C) No. 289/2020

Sri Kali Sankar Baidya, Vs.  The State of Tripura, 

HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Dated: 30/09/2020

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Whether principle of res judicata is applicable even if subsequent suit is filed by different party?

 It is in this background, we notice that the subsequent suit, may be by another person, but dealing with the very same subject matter, is clearly hit by the principle of res judicata, for the issue in question in the instant suit was directly and substantially in issue in the earlier suit.

In the High Court of Tripura at Agartala

(Before Sanjay Karol, C.J. and Arindam Lodh, J.)

Shyamal Bhattacharjee  v. State of Tripura, 

RFA No. 04/2013

Decided on January 2, 2019,

Citation: 2019 SCC OnLine Tri 2

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Whether final decree for partition can be challenged if preliminary decree is not challenged?

Preliminary decree is undoubtedly an appealable decree. Section 97 of CPC is in the following terms:

"97. Appeal from final decree where no appeal from preliminary decree.- Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree."

5. The Apex Court had an occasion to consider the provision of Section 97, CPC in Mool Chand v. Dy. Director, Consolidation, MANU/SC/0507/1995 : (1995) 5 SCC 631 and explained the legal position in the following manner:

"26. Thus, if an appeal is not filed against the preliminary decree and its correctness is not challenged, it becomes final and the party aggrieved thereby will not be permitted to challenge its correctness in an appeal against final decree.

27. The Privy Council in Ahmed Musaji Saleji v. Hashim Ebrahim Saleji MANU/PR/0001/1915 : AIR 1915 OC 116 held that failure to appeal against a preliminary decree would operate as a bar to raising any objection to it in an appeal filed against final decree. This Court in Venkata Reddi v. Pothi Reddi MANU/SC/0024/1962 : 1963 Supp (2) SCR 616: AIR 1963 SC 992 has held that the impact of Section 97 is that the preliminary decree, so far as the matters covered by it are concerned, is regarded as embodying the final decision of the court passing that decree. It observed as under:

"A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, insofar as the matters dealt with by it are concerned, be regarded as embodying ... the final decision of the court passing that decree."

This decision was relied upon in Gyarsi Bai v. Dhansukh Lal MANU/SC/0251/1964 : AIR 1965 SC 1055: (1965) 2 SCR 154 in which it was observed as under:

"It is true that a preliminary decree is final in respect of the matters to be decided before it is made.... It is indisputable that in a mortgage suit there will be two decrees, namely, preliminary decree and final decree, and that ordinarily the preliminary decree settles the rights of the parties and the final decree works out those rights."

6. In the instant case, the petitioner, admittedly, did not challenge the preliminary decree passed by the trial court. Even when the trial court asked him to produce the Gift Deed in question also, he failed to do so. The effect of Section 97 is that the preliminary decree so passed by the trial court, in so far as the matters covered by it is concerned, is regarded as embodying the final decision of the court passing the decree. There is, therefore, no improper exercise of jurisdiction by the learned Civil Judge in rejecting the series of application filed by the petitioner. Apparently, the petitioner is making a last ditch effort to stall the proceedings lawfully conducted by the trial court so that the respondent is deprived of the fruit of his litigation.

IN THE HIGH COURT OF TRIPURA AT AGARTALA

CRP No. 116/2016

Decided On: 19.01.2017

Pranballab Debnath
Vs.
 Minati Debnath and Ors.

Hon'ble Judges/Coram:T. Vaiphei, C.J.

Citation: AIR 2017 Tripura 22

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Whether accused can be acquitted on ground that prosecution witnesses gave contradictory evidence?

 A mere statement that the accused-appellant Jhuma was involved in illicit act of prostitution and that she insisted Ashalata to involve in the illicit activity and Ashalata denied to do so and therefore, she was tortured, in the particular facts and circumstances of this case where the other allegation of the prosecution is that the accused Sanjib used to suspect the character of his wife Ashalata and therefore, killed her in the night taking her out of the dwelling hut on some pretext are quite contradictory with each other and, therefore, I think the accused-appellant should get the benefit of doubt. 

IN THE HIGH COURT OF TRIPURA

Crl. Appeal No. 24 of 2013

Decided On: 08.12.2016

 Jhuma Das

Vs.

 State of Tripura

Coram:

S.C. Das, J.

Citation: 2017 CRLJ 1204

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Whether Judge can be arrested without following guidelines laid down by Supreme court?

We are mainly concerned with the independence of the

Judiciary. That is much more important than any individual dispute

or one particular Judicial Officer. At this stage, we may reiterate

the law laid down by the Apex Court in Delhi Judicial Service

Association (supra) case. The relevant portion of the Judgment

reads as follows:-

“56. The facts of the instant case demonstrate that a

Presiding Officer of a Court may be arrested and humiliated

on flimsy and manufactured charges which could affect the

administration of justice. In order to avoid any such

situation in future, we consider it necessary to lay down

guidelines which should be followed in the case of arrest

and detention of a Judicial Officer. No person whatever his

rank, or designation may be, is above law and he must face

the penal consequences of infraction of criminal law. A

Magistrate, Judge or any other Judicial Officer is liable to

criminal prosecution for an offence like any other citizen

but in view of the paramount necessity of preserving the

independence of judiciary and at the same time ensuring

that infractions of law are properly investigated, we think

that the following guidelines should be followed:

A) If a Judicial Officer is to be arrested for some

offence, it should be done under intimation to the District

Judge or the High Court as the case may be. 

B) If facts and circumstances necessitate the

immediate arrest of a Judicial Officer of the subordinate

judiciary, a technical or formal arrest may be effected.

C) The fact of such arrest should be immediately

communicated to the District and Sessions Judge of the

concerned District and the Chief Justice of the High Court.

D) The Judicial Officer so arrested shall not be taken

to a police station, without the prior order or directions of

the District & Sessions Judge of the concerned District, if

available.

E) Immediate facilities shall be provided to the

Judicial Officer for communication with his family

members, legal advisors and Judicial Officers, including the

District & Sessions Judge.

F) No statement of a Judicial Officer who is under

arrest be recorded nor any panchnama be drawn up nor

any medical tests be conducted except in the presence of

the Legal Advisor of the Judicial Officer concerned or

another Judicial Officer of equal or higher rank, if available.

G) There should be no handcuffing of a Judicial

Officer. If, however, violent resistance to arrest is offered

or there is imminent need to effect physical arrest in order

to avert danger to life and limb, the person resisting arrest

may be overpowered and handcuffed. In such case,

immediate report shall be made to the District & Sessions

Judge concerned and also to the Chief Justice of the High

Court. But the burden would be on the Police to establish

the necessity for effecting physical arrest and handcuffing

the Judicial Officer and if it be established that the physical

arrest and hand-cuffing of the Judicial Officer was

unjustified, the Police Officers causing or responsible for

such arrest and handcuffing would be guilty of misconduct

and would also be personally liable for compensation

and/or damages as may be summarily determined by the

High Court.

57. The above guidelines are not exhaustive but

these are minimum safeguards which must be observed in

case of arrest of a Judicial Officer. These guidelines should

be implemented by the State Government as well as by the

High Courts. We, accordingly, direct that a copy of the

guidelines shall be forwarded to the Chief Secretaries of all

the State Governments and to all the High Courts with a

direction that the same may be brought to the notice of the

concerned officers for compliance

THE HIGH COURT OF TRIPURA

AGARTALA

W.P. (C) (Suo Motu) 220 of 2014

Court on own Motion Vs State of Tripura by the Secretary,

BEFORE

HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA

HON’BLE MR. JUSTICE S.C. DAS

Delivery of Judgment : 26.08.2015.

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Whether police can insist illiterate informant to give FIR in writing written by someone else?

Section 154 of CrPC contemplates that if the information is given orally to the officer in-charge of a police station it shall be reduced to writing by him or under his direction. The informant was an illiterate person. He stated that when the police officers arrived there he told the police officers that accused Nani Kanta and Tukan murdered Gopi Mohan and so it was the duty of the police officers to record the FIR themselves as per the statement of Bidhu but they insisted for an FIR in writing and one can just imagine under that circumstances where a brutal murder occurred in the house of Bidhu he might not be in a position to narrate the occurrence arithmetically. It was obvious that hearing cries many people would gather since the cry was raised saying 'thief thief" whereas the accused persons only chased behind the deceased Gopi Mohan and searched for him and they have only killed the deceased.

In the given facts and circumstances of this case while an information was already received by police at P.S. and Exbt. 10 G.D. entry was made which was definite about a cognizable offence the subsequent collection of writing ejahar from Bidhu which is proved as Exbt. 1/1 by PW. 9 is clearly hit by Section 162 of CrPC and cannot be regarded as FIR.

This Court on several earlier occasions insisted that the law requires the FIR should be recorded by the police officer himself or by any person under his direction and a police officer should not insist upon an illiterate person to give an FIR in writing written by somebody else.

IN THE HIGH COURT OF TRIPURA AT AGARTALA

Crl. A (J) Nos. 4 and 11 of 2014

Decided On: 05.04.2016

Tukan Sharma and Ors.
Vs.
The State of Tripura

Coram:Deepak Gupta, C.J. and S.C. Das, J.

Citation: 2016 CRLJ4019

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Whether under muslim law female can perform act of Mutawalli?

It is not disputed that under Mahomedan Law a femalealso can perform the act of Mutawalli. If a female can perform the
act of Mutawalli the defendant No.5 should not have appointed any 
other person as Mutawalli in exercise of the power under Section 63
of the Wakf Act, 1995. The testator in his Will creating the Wakf did
not say anything about the performance of any spiritual duties but
simply stated about lighting of candle and maintenance of the
Mosque out of the income of the Wakf property and those can be
performed by any Mutawalli whether a male or female. From the
pleadings and evidence of defendant No.5 it is clear that only based
on the statement of the President and Secretary of the SubDivisional
Committee the defendant No.5 without having any
enquiry appointed Abdul Mannan Choudhury as Mutawali and
thereafter Abdul Hannan Choudhury as Mutawali which was not at
all called for. There is nothing in the Mahomedan Law as admitted
by the defendants also that a female cannot perform the act of
Mutawalli. The plaintiff admittedly being a descendent of the
testator Nachir Mohammed can perform the act of Mutawalli
irrespective of the fact that her mother died before the death of her
grandmother Esha Bibi. That point that Laila Bibi died before Esha
Bibi is not material point to be considered by the Court and I do not
find any importance to be attached on that issue. I have therefore
no hesitation to come to the conclusion that the plaintiff being the
legal representative of the testator Nachir Mohammad was/is

entitled to act as Mutawali of the Wakf property.

THE HIGH COURT OF TRIPURA
 AGARTALA
RSA NO.67 OF 2008


Smt. Rahima Begam Choudhury,
 -Vs –
The State of Tripura,
BEFORE
HON’BLE MR. JUSTICE S.C. DAS


Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri

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When wakf will be wakf-alal-aulad that is private wakf?

Wakf may be created by Muslim generally falls into two
categories. One is public Wakf in the sense that the beneficiaries
are members of the public and the other is private Wakf in the
sense that public as such are not the beneficiaries and certain
specified individual happens to be the beneficiaries. Even with
regard to a private Wakf there may be two kinds. One is a Wakf-alal-aulad
simpliciter and the other is Wakf in which there is a
dedication or gift in praesenti in the sense that a portion of the
income from the Wakf property is preserved for being spent for
strangers and other objects of piety or charity and the other portion
being spent for the benefit for the Wakif’s relations and members of
the family.
 In the given facts of this case the Wakf was created for
performing specific religious and charitable purpose as well as for
maintenance of the legal heirs/descendents of the testator and the
testator has specified that in the event the legal heirs/descendents
failed to maintain the Mosque and light candles in the Mosque, they
will be deprived of enjoying the usufruct of the Wakf property. 
Therefore, in my considered opinion it was a private Wakf created
for some religious purpose as well as for the interest of the family
members of the Wakif.
19. Learned senior counsel, Mr. Bhowmik has referred the
case of Tamil Nadu Wakf Board v. Larabsha Darga Panruti
reported in (2007) 13 SCC 416 and submitted that the apex Court
clearly held in the judgment that the suit property was belonged to
a private Wakf and Wakf-alal-aulad. Though the fact of that case
and the fact of the present case are not exactly similar but the
principles enunciated in that judgment may fairly be applied in the
facts of this case and I am of the considered opinion that the Wakf
created by Nachir Mohammed in the facts of the present case is a

private Wakf, Wakf-alal-aulad and it is not a public Wakf.

THE HIGH COURT OF TRIPURA
 AGARTALA
RSA NO.67 OF 2008


Smt. Rahima Begam Choudhury,
 -Vs –
The State of Tripura,
BEFORE
HON’BLE MR. JUSTICE S.C. DAS


Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri

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Whether jurisdiction of civil court is barred in respect of dispute relating to wakf property?

In view of the provisions laid down in the Wakf Act and
the law explained by the apex Court in Anis Fatma Begum(supra)
the civil Court is barred in exercising jurisdiction in respect of a
dispute of Wakf. Since in the present case, it is an admitted position
that a Wakf was created by the deceased Nachir Mohammed, any
dispute regarding the Wakf or Wakf property should be decided by
the Tribunal and the plaintiff or the defendants may approach the 
Tribunal for deciding the dispute which is brought in the civil suit.
The apex Court has held that against the decision of the Tribunal an
aggrieved party can approach the High Court which can call for the
records for satisfying itself as to the correctness, legality or
propriety of the decision of the Tribunal. The plaintiff-appellant, if
so advised may approach the appropriate Tribunal for deciding the
dispute and in case the plaintiff-appellant is aggrieved by the
decision of the Tribunal it may approach the High Court as per the
law explained by the apex Court.
THE HIGH COURT OF TRIPURA
 AGARTALA
RSA NO.67 OF 2008


Smt. Rahima Begam Choudhury,

 -Vs –
The State of Tripura,

BEFORE
HON’BLE MR. JUSTICE S.C. DAS


Date of delivery of
Judgment & Order : 06.05.2015
Citation:AIR 2016(NOC) 549 Tri

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When mother will be preferred for grant of custody of child?

Even if the child is living with the father, the father and
the family members of the father should tell the child to love and
respect the mother. Just because the husband and wife are
fighting does not mean that the child should be taught to hate her
mother. A child who is taught to hate her mother can never turn
out to be a good human being. In any society the most important
trait of any person, be that person howsoever high or howsoever
low, is that the person should be a good human being.

The most important aspect is that the best interest of
the child has to be kept in mind while passing any order with
regard to custody, visitation rights etc. Legally speaking when the
child is a female and only 5 years of age the mother has the legal

right to get the custody of the child.

THE HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn. No.09 of 2015
Smt. Sreeparna Banik (Saha),
- Vs. –

Sri Ankur Saha,

BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
Citation: AIR 2016 (NOC)541 TRI

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Duty of court while dealing with child custody matter

Here comes the role of Judges who handle such
matters. A child of such tender age has to be handled in a manner
where the child finds a friend in the Judge. First of all the
consultation with the child should be done in a language which the
child understands. Secondly, the child should never be called to
the Court room but only to the chamber. Thirdly, the Judge must
make an effort to build up a relationship with the child where the
child starts trusting the Judge. It is the duty of the presiding officer
to find out the truth from the child. Unfortunately, neither the
learned Magistrate nor the learned Sessions Judge tried to do this.
THE HIGH COURT OF TRIPURA
AGARTALA
Crl. Petn. No.09 of 2015
Smt. Sreeparna Banik (Saha) Vs Sri Ankur Saha,
BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA


Citation: AIR 2016 (NOC)541 TRI

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When doctrine of laches will act as bar for getting relief from court?

“The doctrine of laches” is based upon maxim that
equity aids the vigilant and not those who slumber on their
rights. It is defined as neglect to assert a right or claim which,
taken together with the lapse of time and other circumstances
causing prejudice to adverse party, operates as bar in Court of
equity. The elements of laches are – (i) unreasonable lapse of
time, (ii) neglect to assert a right or claim, (iii) to the detriment
of another. If these three elements are met, then the doctrine
of laches will act as a bar in Court.
 Laches is, therefore, considered as an unreasonable
delay in pursuing a right or claim. In a way it prejudices the
opposing party. When asserted in litigation, it is an equitable
defence, or doctrine. The person invoking laches is asserting
that an opposing party has slept of on his “right” and that as a
result of this delay, circumstances have changed such that it is
no longer just to grant the petitioner’s claim. To put in other
way, failure to assert one’s right in a timely manner results in a
claim being barred by laches.
 Laches is a defence to a proceeding in which a
petitioner seeks equitable relief. Cases in equity are
distinguished from cases at law by the type of remedy, or
judicial relief, sought by the petitioner. Generally, law cases
involve a problem that can be solved by the payment of
monetary damages. Equity cases involve remedies directed by
the Court against a party. The law encourages a speedy
resolution for every dispute. Cases in law are governed by
statutes of limitation, which are lodged that determine how long
a person has to file a law suit before the right to sue expires.
Different types of injuries have different time periods in which
to file a law suit. Laches is the equitable equivalent of statutes
of limitation. However, unlike statutes of limitation, laches
leaves it up to the Court to determine, based on the unique
facts of the case, whether a petitioner has waited too long to
seek the relief.
In the case of Shankara Cooperative Housing
Society Limited Vs. M. Prabhakar & ors., reported in
(2011) 5 SCC 607, the Apex Court in para 46 and 47 has held
as follows:-
“46. Delay and laches is one of the factors that
requires to be borne in mind by the High Courts
when they exercise their discretionary power
under Article 226 of the Constitution of India. In
an appropriate case, the High Court may refuse to
invoke its extraordinary powers if there is such
negligence or omission on the part of the applicant
to assert his rights taken in conjunction with the
lapse of time and other circumstances. 
47. The Privy Council in Lindsay Petroleum Co.
V. Hurd, (1874) LR 5 PC 221, which was approved
by this Court in Moon Mills Ltd. V. Industrial Court,
AIR 1967 SC 1450 and Maharashtra SRTC V.
Balwant Regular Motor Service, AIR 1969 SC 329,
has stated: (Lindsay Petroleum Co. Case, LR pp.
239-40).
 “Now the doctrine of laches in courts of
equity is not an arbitrary or a technical
doctrine. Where it would be practically unjust
to give a remedy, either because the party
has, by his conduct, done that which might
fairly be regarded as equivalent to a waiver of
it, or where by his conduct and neglect he
has, though perhaps not waiving that remedy,
yet put the other party in a situation in which
it would not be reasonable to place him if the
remedy were afterwards to be asserted, in
either of these cases, lapse of time and delay
are most material. But in every case, if an
argument against relief, which otherwise
would be just, is founded upon mere delay,
that delay of course not amounting to a bar by
any statute of limitations, the validity of that
defence must be tried upon principles
substantially equitable. Two circumstances,
always important in such cases, are, the
length of the delay and the nature of the acts
done during the interval, which might affect
either party and cause a balance of justice or
injustice in taking the one course or the other,
so far as it relates to the remedy.”
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) NO. 426 OF 2013

Shri Prasanna Hari Jamatia,
V
The State of Tripura,

BEFORE
HON’BLE THE CHIEF JUSTICE MR. DEEPAK GUPTA
THE HON’BLE MR. JUSTICE S. C. DAS

Dated : 03.03.2015.

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